Grier v. Tri-State Transit Co.

• Decision Date: 12 December 1940
• Docket Number: No. 342-Civ. A.,342-Civ. A.
• Citation: 36 F. Supp. 26
• Parties: GRIER et ux. v. TRI-STATE TRANSIT CO. et al.
• Court: U.S. District Court — Western District of Louisiana

36 F. Supp. 26

GRIER et ux. v. TRI-STATE TRANSIT CO. et al.

No. 342-Civ. A.

District Court, W. D. Louisiana, Shreveport Division.

December 12, 1940.

Douglas W. McGregor and Brian S. Odem, both of Houston, Tex., and Booth & Lockard, of Shreveport, La., for plaintiffs.

E. W. & P. N. Browne and Charles B. Emery, all of Shreveport, La., for defendants.

PORTERIE, District Judge.

Mrs. Grier, a resident and a citizen of the state of Oregon, while a passenger on one of the busses of the defendant motor transit company and while traveling from Shreveport, La., to Meridian, Miss., was injured near Rayville, Richland parish, La., as the result of a traffic accident, when the bus she occupied collided neglectfully with an automobile going in the opposite direction. Her individual claim is in the round sum of $25,000 for "permanent and severe injuries, including pain and suffering, past, present and future." She is joined by her husband in the action, who claims for himself a total of $35,833.54, itemized, as follows:

                Doctor bills..............................  $ 1,515.00
                Hospital bills............................      496.60
                Nurses' bills.............................    1,057.00
                Drug bills................................       86.94
                X-rays ...................................       30.00
                Future Medical bills......................    2,500.00
                Loss of wages.............................      228.00
                Board for children........................      120.00
                Loss of trunk.............................      500.00
                Mental pain and anguish...................   10,000.00
                Household help (not necessary
                 heretofore) $300.00 per year.............    9,300.00
                Loss of wife's society and consortium.....   10,000.00
                                                            __________
                 or a total of............................  $35,833.54
                

The two plaintiffs, wife and husband, make not only the Tri-State Transit Company, Inc., a Louisiana corporation, engaged in and duly authorized to engage in interstate and foreign commerce as a common carrier by motor vehicle of passengers and their baggage, a defendant, but join the American Fidelity & Casualty Company, a Virginia corporation, authorized to do business in Louisiana, as a codefendant, on the point that it has issued a policy and contract of liability insurance in favor of the Tri-State Transit Company, insuring and indemnifying against any and all liability resulting by reason of the negligent operation of the bus in which Mrs. Grier was riding at the time of the accident.

The plaintiffs allege in another paragraph of their petition "That the said policy and contract of insurance provides, inter alia, that the said American Fidelity & Casualty Company will pay any final judgment rendered against the Transit Company to any third person injured or damaged as a result of the negligent operation of the bus in which your petitioner was riding, and that said insurance company is therefore a proper party defendant herein pursuant to Act 55 of the General Assembly of the State of Louisiana for the year 1930." (Italics supplied.)

The Tri-State Transit Company, Inc., and the American Fidelity & Casualty Company move that the two items "mental pain and anguish, $10,000.00" and "loss of wife's society and consortium, $10,000.00" be expunged from the petition because they "are not recoverable under the laws of the State of Louisiana, and are therefore immaterial and impertinent in this cause."

On the same day, September 3, 1940, both defendants, the motor carrier and its insurer, moved for a bill of particulars as to the item of $500 for a trunk and its contents, as to the item of $228 for wages and salary lost by husband-plaintiff, and as to the item of $9,300 for household help, "not necessary heretofore."

Subsequently, on November 6, 1940, the two defendants filed what they term an "amended motion to strike, and motion to dismiss." The expunction of the two items of $10,000 each is again urged, based on the same reasons as heretofore. Then followed a motion to dismiss the American Fidelity & Casualty Company from the case as a defendant, because the contract of liability insurance between the two defendants bears the following endorsement: "The Company hereby agrees to pay any final judgment recovered against the insured for bodily injury to or the death of any person, or loss of or damage to property of others * * *, resulting from the negligent operation, maintenance or use of the motor vehicle under Certificate of Public Convenience and Necessity or permit issued to the insured by the Interstate Commerce Commission or otherwise under the Motor Carrier Act of 1935 within the limits of liability hereinafter provided, regardless of whether such motor vehicles are specifically described in the policy or not. It is understood and agreed that upon failure of the Company to pay any such final judgment recovered...